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Home My WebLink Aboutordinance.council.067-87 ORDINANCE NO. 67 Series of 1987 AN ORDINANCE APPROVING THE TERMS AND CONDITIONS OF A MODIFICATION AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND THE ROARING FORK LAND AND CATTLE COMPANY D/B/A THE T-LAZY-7 MODIFYING THAT "LEASE AGREEMENT" DATED AUGUST 7, 1984, SO AS TO ALLOW 85 PERCENT OF THE ESTIMATED $150,000 DIVERSION PIPE LINE REPAIR TO BE CHARGED AGAINST THE MAROON CREEK HYDRO PROJECT, AND DIRECTING THE MAYOR TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY WHEREAS, there has been presented to the City Council a modification agreement between the City and The Roaring Fork Land and Cattle Company d/b/a The T-Lazy-7, modifying that lease agreement dated August 7, 1984, so as to allow 85 percent of the estimated $150,000 diversion pipe line repair to be charged against the Maroon Creek Hydro Project; and WHEREAS, the City Council desires to approve said modifica- tion agreement and direct the Mayor to execute the same on behalf of the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 The City Council does hereby approve that modification agreement between the City of Aspen and the Roaring Fork Land and Cattle Company d/b/a/ the T=Lazy=7, attached hereto and incorporated herein by this reference, and does hereby direct the Mayor to execute such agreement on behalf of the City. Section 2 If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distance and independent provision and shall not affect the validity of the remaining portions thereof. Section 3 Nothing in this ordinance shall be construed to affect any right, duty or liability under any ordinances in effect prior to the effective date of this ordinance, and the same shall be continued and concluded under such prior ordinance. Section 4 A public hearing on the ordinance shall be held on the llth day of January, 1988, at the Aspen City Hall, 130 South Galena Street, Aspen, Colorado INTRODUCED, READ AND ORDERED published as provided by law of the City Council of the City of Aspen on the 21st day of Decem- ber, 1987. rWilliam L. S~lr±ing, y ATTEST: Kathry~S. Koch, City Clerk FINALLY adopted, passed and approved this ~%Z~j day of ~ , 1988. ~illiam L. St/~l-ing, Mafor ATTEST K~ch, City Clerk MODIFICATION AGREEMENT This Modification Agreement made this--//~ day of ~_~~ _ , 1988, by and between the City of Aspen, Colorado ( Aspen ), a home rule city, and the Roaring Fork Land and Cattle Company d/b/a the T-Lazy-7, a Colorado corporation ("Roaring Fork"): WITNESSETH WHEREAS, the parties hereto have previously entered into a "Lease Agremeent", dated August 7, 1984, pertaining to the use of land owned by Roaring Fork for the purpose of Aspen's erecting and operating a hydroelectric facility ("the Project"); and WHEREAS, Paragraph 2(a) of said Agreement sets forth which costs associated with the construction of the Project were to be considered costs of the project for purposes of determining net revenues thereof; and WHEREAS, since the execution of said Agreement it has been determined that a portion of the City-owned Maroon Creek pipeline will require certain repairs; and WHEREAS, the parties acknowledge that Aspen has received an opinion that a portion of the Maroon Creek pipeline, lying between the City's existing Maroon Creek municipal water supply diversion dam and the site for the Project, is in need o~ repairs which are presently scheduled for completion in the summer of 1988; and ~{EREAS, the parties further acknowledge that the projected cost for such repairs has been estimated to be not more than $150,000.00; and k~EREAS, the parties agree that a certain percentage of the cost of said repairs shall be considered a cost of the Project for purposes of determining the net revenues thereof; and WHEREAS, the parties wish, therefore, to modify said Agreement in accordance with the terms and conditions set forth hereinafter. NOW, THEREFORE, in consideration of the premises, mutual promises and convenants herein, the parties agree as follows: 1. Amendment of Paragraph 2(d) to Include in Costs of Current Repairs. The parties agree that 85% of the actual cost of such current repairs to the pipeline may be considered to be a cost of construction of the Project as provided in Paragraph 2(a) of the Agreement, provided that the maximum amount of said actual cost of pipeline repairs to which the above percentage shall apply shall not exceed $150,000.00, and provided further that no repairs shall be made to said pipeline unless the same are reasonably necessary to enable the said pipeline to serve as the water delivery source for the Project. 2. Development Costs. The parties further agree that all development costs of the Project incurred by Aspen prior to December 1, 1987, including, without limitation, costs of processing the FERC application, engineering costs, attorney's fees, and all other costs, shall not be considered costs of the project for purposes of Paragraph 2 of the Agreement. 3. Subsequent Repair. The cost of subsequent repairs occurring to the said pipeline shall be paid upon the following terms and conditions: (a). For any events occurring to the pipeline which give rise to the need for such repairs the percentage of such costs which will be paid by Aspen and the percentage which shall be a cost of the Project shall be in the same proportions that the water flowing through said pipeline was used by the Project and/or by Aspen in the 12 months immediately preceding the date upon which the damage caused by said event is discovered. (b). Notwithstanding the foregoing, for any events occurring within the first six years of the operation of the Project which give rise to the need for such repairs, regardless of the cause giving rise to the nee4 for such 3 repairs, and regardless of the amounts of water flowing through the pipeline which are used by Aspen or the Project, the costs of repair which will be borne by the Project shall be the lesser of: (1) the amount established by the provisions of 3(a) above, or (2) a percentage of the total cost of said repair in each respective project year as established by the following schedule: Project Year Percentage of cost borne b~ the Project 1 0 2 12.5 3 25 4 37.5 5 50 6 67.5 Thereafter the costs of repair will be shared as set forth in subparagraph 3(a). (c). For purposes of subparagraph (b) "year" or "project year" shall mean the period of time from the same date in each year of this agreement as that upon which the Project first commenced operation to and including the date preceeding the same date in each following year. (d). Notwithstanding anything herein to the contrary, the cost of any repairs to the pipeline shall not be a cost charged to the Project unless an independent engineer, to be selected by mutual agreement of the parties, certifies the repair to be reasonably necessary. (f). In no event shall the cost of repair to said pipeline which is related to pipeline damage occurring below the Project be charged to the Project. 4. Payment. The portion of any repair costs to be borne by the Project shall be paid from the cash flow generated thereby, and Roaring Fork shall not be required to advance monies to pay the same. 5. Agreement Preserved. Except as so modified, the said Agreement shall remain in full force and effect, including, without limitation, Paragraph 2(d) of the Agreement, and the parties hereto reaffirm and ratify their obligations and rights thereunder. 6. Controllin~ Law Provision. This Agreement shall be construed, interpreted and subject to the law of the State of Colorado. 7. Entire Asreement. This writing contains the entire agreement of the parties. No representations were made or ~relied upon by either party other than those that are expressly set forth. This Agreement may not be modified, extended, changed, mutually rescinded, or altered unless done in writing and signed by the respective parties. 8. Attorney Fees. In the event that any party hereto reaosnably is required to utilize the services of an attorney to initiate litigation to enforce any provision hereof, then the party prevailing in such litigation, whether the party 5 initiating litigation or otherwise, shall be entitled to his reaosnable attorney fees. 9. Severabilit~. The provisions of this agreement are severable, and in the event that one is deemed to be subsequently invalid, then the remainder shall continue to be valid. 10. Captions. The captions of each paragraph herein are intended for convenience only and are not to be construed to expand, limit, alter or modify in any fashion the language of each paragraph, and are not intended to be used in any fashion to affect the interpretation of each of said paragraphs. IN WITNESS ~HEREOF, the parties hereto have executed this Agreement the day and year first above written. CITY OF ASPEN Attest: Clerk ~ Mayor 6